State v. Taylor

310 Neb. 376

966 N.W.2d 510

STATE of Nebraska, appellee,

v.James E. TAYLOR, appellant.

No. S-21-096.

Supreme Court of Nebraska.

Filed November 12, 2021

Joe Nigro, Lancaster County Public Defender, and James Sieben, for appellant.

Robert E. Caples, Assistant Lincoln City Prosecutor, for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ., and Thompson, District Judge.

Papik, J.

The State prosecuted James E. Taylor for violating a municipal ordinance prohibiting driving under the influence. The State's theory was that Taylor was driving while impaired by his prescription medication. Taylor was convicted in the county court and unsuccessfully appealed his conviction to the district court. He now appeals again, arguing that the State could not establish a driving under the influence conviction on the theory he was under the influence of prescription medications and that the evidence was otherwise insufficient to support his conviction. We disagree with Taylor's arguments and therefore affirm.

BACKGROUND

The State charged Taylor with several offenses arising out of a traffic stop in Lincoln, Nebraska, in July 2019. The sole charge relevant to this appeal was that Taylor violated Lincoln Mun. Code § 10.16.030 (2017), a certified copy of which is in our record. That ordinance makes it "unlawful for any person to operate or be in the actual physical control of any motor vehicle while under the influence of alcoholic liquor, or of any drug."

At trial, the State called the police officers who completed the traffic stop, Matthew Stegman and Bryan Gruber. Stegman testified that because he was training Gruber, they were riding together that night. Stegman and Gruber testified that just after 11 p.m., they saw a vehicle driving on a Lincoln street with its headlights off. While following the vehicle, the officers saw it cross the centerline and strike a curb. Gruber initiated a traffic stop. Taylor was the vehicle's only occupant.

Stegman testified about his interaction with Taylor during the traffic stop. Stegman asked Taylor why his headlights were not on and why he struck the curb. Taylor responded that he thought his headlights were on and that he fell asleep while driving. Stegman also testified that when he asked Taylor whether he had taken any medications or drugs recently, Taylor responded that he had taken some prescription pills.

Stegman observed that Taylor had "somewhat slurred speech" and appeared "overtired" and not "completely aware of what [was] going on."

Stegman testified that he then asked Taylor to get out of the vehicle so that he could administer field sobriety tests. Taylor's performance on several field sobriety tests indicated that he was impaired. Gruber testified that while Stegman was administering the field sobriety tests, Taylor was "basically falling asleep periodically during the test." The officers did not smell any alcohol on Taylor's breath, and Taylor denied using alcohol. A preliminary breath test did not detect any alcohol on Taylor's breath.

As a result of Taylor's driving and his performance on the field sobriety tests, the officers transported him to another location so that he could be evaluated by a drug recognition expert (DRE). Prior to the DRE evaluation, Taylor submitted to a formal breath test on a DataMaster machine, which also showed no indication of alcohol. After Stegman read Taylor his Miranda rights, Taylor also agreed to be interviewed. During this interview, Taylor again acknowledged recently taking medications. He informed the officers he was taking the medications for mental and behavioral health reasons and provided the names of those medications. The medications included Seroquel and Effexor. According to Stegman, Taylor stated that when taking the medications, he did get "sleepy," but that he felt he could still drive safely.

Sgt. Max Hubka, the certified DRE who evaluated Taylor, also testified. He described the multistep DRE protocol, which included performance tests of Taylor, the formation of an opinion by Hubka, and toxicology. Hubka observed that during the evaluation, Taylor appeared tired and stated that he was tired. Hubka also observed that Taylor's speech was slow, "with a slight slur to it." Hubka testified that Taylor told him what prescription medications he had taken that evening and that they included Seroquel and Effexor. Hubka testified that based on his training, he knew those two medications to be central nervous system (CNS) depressants. Hubka testified over Taylor's objection that the term "CNS depressants" refers to a category of drugs that "slow[ ] the processes of the body." According to Hubka, CNS depressants would include antidepressants and antipsychotics and Seroquel is an antipsychotic medication.

Hubka also testified over Taylor's objection that in his opinion, Taylor was under the influence of CNS depressants. Hubka based this opinion on Taylor's performance on field sobriety tests, inability to stay awake, slightly slurred speech, and poor balance, as well as Taylor's agreement with Hubka's opinion that Taylor was not safe to drive and his admission that he had ingested multiple types of CNS depressants before driving.

A forensic scientist in the Nebraska State Patrol Crime Laboratory testified that she analyzed a urine sample provided by Taylor. She explained that her analysis was governed by 177 Neb. Admin. Code, ch. 7 (2007), a certified copy of which was received in evidence. Over Taylor's objection, she testified that in Taylor's urine sample, she detected venlafaxine, the generic term for Effexor, which she characterized as a "mild CNS depressant." She also testified that she detected quetiapine, the generic term for Seroquel, and explained that quetiapine is an antipsychotic medication with "CNS depressant side effects."

In his defense, Taylor called a friend he had visited immediately before the traffic stop. She testified that Taylor had fallen asleep at her residence, but she denied seeing him use any drugs or medications and did not believe he was "high" or under the influence.

Taylor also testified in his own defense. He testified that for at least 5 years prior to the traffic stop, he had prescriptions for and had been taking Effexor and Seroquel. Taylor could not recall ever being told by a doctor that the medications should not be used prior to driving and testified that the labels on the medication bottles directed only that those taking the medications should use caution while driving.

The county court found Taylor guilty of driving under the influence of drugs and sentenced him accordingly. Taylor appealed that conviction to the district court. Taylor challenged several of the county court's evidentiary rulings and argued that the county court had erred in finding him guilty without sufficient evidence. The district court affirmed Taylor's conviction.

Taylor then appealed the district court's decision, and we moved the case to our docket.

ASSIGNMENT OF ERROR

Taylor's appellate brief sets forth two numbered assignments of error. The second assigned error is that the district court erred by finding that there was sufficient evidence to support the conviction of driving under the influence. We will analyze Taylor's challenge to the sufficiency of the evidence below.

Taylor's first assigned error is more general. He asserts that "[t]he district court erred by affirming [Taylor's] conviction in county court of driving under the influence as a matter of law." It is a fundamental rule of appellate practice that an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. State v. Iddings , 304 Neb. 759, 936 N.W.2d 747 (2020). A generalized and vague assignment of error that does not advise an appellate court of the issue submitted for decision will not be considered. Id. Taylor's assertion that the district court erred "as a matter of law" without any elaboration as to the nature of that error is the type of generalized assignment of error that we do not consider.

STANDARD OF REVIEW

In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. State v. Valentino , 305 Neb. 96, 939 N.W.2d 345 (2020). Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. Id. When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. But we independently review questions of law in appeals from the county court. Id. When deciding appeals from criminal convictions in county court, we apply the same standards of review that we apply to decide appeals from criminal convictions in district court. Id.

An appellate court will sustain a conviction in a bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support that conviction. State v. Montoya , 304 Neb. 96, 933 N.W.2d 558 (2019). In making this determination, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented, which are within a fact finder's province for disposition. Id. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.

Interpretation of a municipal ordinance is a question of law, on which we reach an independent conclusion irrespective of the determination made by the court below. Wilkison v. City of Arapahoe , 302 Neb. 968, 926 N.W.2d 441 (2019)....